1979 Supreme Court Ruling Becomes Focus Of NSA Tactics

Throughout this debate over the NSA, the government has maintained that this collection of phone records for millions of Americans is legal and constitutional. And the government has sided a key Supreme Court case decided in 1979.

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UNIDENTIFIED MAN: Case is submitted, and we'll hear arguments next in Smith against Maryland.

RATH: That's audio from the arguments in the case Smith v. Maryland. And the basic gist was this: A man had stolen a handbag from a woman walking home in Baltimore. Soon after, the women started getting harassing phone calls. The police suspected a guy named Michael Smith. So without a warrant, they had a device called a pen register installed on Smith's phone line. The device did not record the calls. It just logged the phone numbers dialed. The police confirmed Smith had made the calls and had stolen the purse, and they arrested him.

But Smith's lawyer said the police had violated his constitutional rights by failing to get a warrant. The case went all the way to the Supreme Court. The state argued that the numbers people dial, that that was not private information since it already went through the phone company. For example...

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STEPHEN SACHS: The call out from your hotel room to the butcher that says I want three pork chops could be revealed to the police, Sachs wants three pork shops.

RATH: The Sachs there is Stephen Sachs, then the attorney general of Maryland.

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SACHS: In the same sense, when I say I want 4666187 to the phone company, I run the risk, and we say the legitimate risk, that that information may be communicated to the police.

RATH: That was Justice Thurgood Marshall with a question. And pork chops aside, the Supreme Court ruled 5-to-3 for Attorney General Sachs and the state of Maryland. The court said that people have no reasonable expectation of privacy for information given to a third party.

SACHS: When you make a phone call, you know that the phone company keeps records of the calls made, and you have no expectation that they might not turn it over to someone else.

RATH: That, all these years later, is Stephen Sachs. We reached out to him earlier this week, because Smith v. Maryland has become a much bigger deal. As we said, it's part of a legal basis for the NSA's collection of phone records of millions of Americans. So I asked him, did you have any idea how important this case could become - would become?

SACHS: None, none.

RATH: Sachs only found out about Smith v. Maryland's new life this summer, when a reporter called him. And he does not like it. He says the government has misinterpreted what he calls a limited ruling on one criminal suspect, and one phone line, back when the phone was a very different piece of technology.

SACHS: The current situation is really a far cry from the world in 1979. The ubiquity, for example, of cellphones now. On every bus, everybody in every restaurant, everybody everywhere is busy using cellphones. The massive intrusion now is world's apart from what we argued in 1979.

RATH: You've made clear that you do not agree with this interpretation of your agreement, this extension of your agreement. Are you hoping that when the president reviews the NSA's surveillance policies in January, that, you know, this part of your legacy will be undone?

SACHS: Yeah. I don't even like the notion that this is part of my legacy. Smith against Maryland was in my judgment correctly decided. It has been misapplied. If I opened Pandora's box - well, I didn't open the Pandora's box. Some others opened the box, and it turned out to be Pandora's. So that's not my legacy. That's others who've done that.

RATH: That's Stephen Sachs. He's the former attorney general of Maryland.